| N.Y. Sup. Ct. | Jun 15, 1888
It is alleged in the complaint as the plaintiff’s cause of action that the defendant was about to conclude a sale of some personal property, of which he was the owner, to one Maria Strong, upon credit, and with a view of securing payment of the notes which she intended to make and deliver to the defendant for the purchase price. Defendant solicited the plaintiff to become a party thereto, and to induce him to do so the defendant made certain false, fraudulent, and untrue statements relative to the value of the property, with intent to injure and cheat and defraud the plaintiff. The sale was concluded, and the plaintiff joined in the execution of the notes, either as maker or indorser,—in which capacity is not clearly established by the evidence. The principal debtor, on account of her insolvency, was unable to
On this trial the plaintiff gave some evidence tending to show that he indorsed the notes, and did not sign the same as maker, and that the defendant gave the plaintiff notice at the proper time that he had demanded payment of the note of the maker, which had been refused, and that he should look to the plaintiff for its payment. The plaintiff also gave evidence tending to show that the defendant did not demand payment of the note of the-maker at its maturity, and that the statement contained in the notice of protest that he had done so was false and untrue. It was upon this evidence-that the plaintiff claimed that he had paid the money under a mistake of fact,, and was entitled to recover back the same in this action. None of these facts were alleged in the complaint, and no issue joined upon the question thus-presented, and the court properly refused to submit the same to the consideration of the jury. Upon this motion we can only consider the exceptions,, and as it appears that none of them were well taken, the motion for a.new trial is denied, and judgment ordered for the defendant, with costs.
All concur.